AT THE REQUEST OF THE CATHOLIC BISHOPS—Conference of the Philippines (CBCP), President Macapagal-Arroyo revoked Executive Order 464 and Memorandum Circular 108. She said that her subalterns would no longer invoke these infamous directives to thwart legislative inquiries.

Functus officio. However, this revocation is legally irrelevant. GMA’s own Solicitor General Agnes Devanadera labeled it a mere “symbolic act.” Indeed, the Supreme Court, in “Senate vs Ermita” (April 20, 2006), has already unanimously declared unconstitutional the major parts of the EO. Thus, it has become functus officio.

Since then, the Arroyo government has not used EO 464 in shielding its officials from Senate probes. For example, to bar Secretary Romulo Neri from answering questions implicating GMA in the ZTE-NBN scandal, the President invoked “executive privilege,” not EO 464.

Contrary to the CBCP’s hopes, the revocation—by itself—will not make executive officials “testify freely before the appropriate investigative bodies.” What now bars officials like Neri from answering the Senate’s search for truth is not EO 464 or MC 108, but the improper or erroneous invocation of executive privilege.

Executive privilege is not per se bad. In fact, it is mandated by the Constitution to enable the President to communicate freely with her top officials. But like other prerogatives, executive privilege can be abused or misused to cover crimes, wrongdoings or irregularities. In like manner, the arrest and detention of criminals is necessary to maintain peace and order. But unscrupulous policemen can abuse or misuse this power by arresting the innocent, or by detaining suspects beyond the legally allowed period.

In my Nov. 25, 2007 column titled “Suppressing Neri’s testimony” (accessible at inquirer.net or my personal website, cjpanganiban.ph), I discussed the limits and parameters of executive privilege that I culled from “Senate vs Ermita.” Here is a summary:

Congressional right to information. Congress—in aid of legislation—has a constitutional right to obtain information from the Executive Branch. On the other hand, executive officials have the corollary duty to provide the legislature with information to enable it to perform its lawmaking function wisely. Hence, the congressional power of inquiry is as extensive as the power to legislate.

Second, the President may withhold information under any of the following categories: (1) state secrets “of such nature that (their) disclosure would subvert crucial military or diplomatic objectives”; (2) informers: privilege or “the identity of persons who furnish information on violations of law to officers charged with the enforcement of that law”; and (3) “generic privilege for internal deliberations” by which governmental decisions and policies are formulated,” for example, discussions during closed-door Cabinet meetings.

Public interest is paramount. Third, disclosure is the rule and secrecy is the exception. It is not enough that the claim for exemption falls among the aforesaid categories; it must be assessed “in the context it is made”—that is, the President must demonstrate the superiority of the public interest that would be served by the grant of the privilege.

Fourth, “in light of the exceptional nature of the privilege,” only the President may avail of it. “She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is ‘By order of the President,’ which means that he personally consulted with her.”

Fifth, executive privilege refers to categories of information, not of officials. The privilege can extend to anyone who knows the secret information. Thus, the testimony of a waiter who served snacks and heard secrets during a closed-door Cabinet meeting may be restricted.

Sixth, the legislative invitation or subpoena should indicate the general nature of the inquiry, the possible questions to be asked and the proposed legislation. Similarly, an exemption request must state the facts and the reasons why the desired information should be restricted. The justification should contain sufficient details to enable Congress to decide prudently whether to grant the request for secrecy.

On the basis of these parameters, I cannot see how the petition of Neri for secrecy can be granted. I do not see any “crucial military or diplomatic secrets” in the ZTE-NBN deal. Neither are closed-door Cabinet meetings involved. Verily, no superior public interest can be served by suppressing his testimony.

If I were GMA, I would not wait for the Supreme Court decision. To start rebuilding my credibility and to show good faith in lifting EO 464, I would abandon the dubious use of executive privilege and immediately instruct Neri to testify freely. Let the sunshine in. Let the truth prevail!

All about arbitration. The Philippine Dispute Resolution Center (PDRC) is sponsoring a seminar on “The Law and Practice of Commercial Arbitration” on April 2-7 at the Linden Suites in Pasig. Open to lawyers and other professionals, the seminar will guide participants through the entire process of arbitration, from the drafting of the arbitral agreement through the preparation of the arbitration claims and defenses, selection of arbitrators, conduct of hearings and enforcement of arbitration judgments. Those interested may call PDRC Secretary General Salvador Panga, Tel. 687-5362 or e-mail at secretariat@pdrci.org.